The England and Wales Court of Appeals delivered its judgment this morning in Simon Singh's appeal of last year's libel verdict against him. This all began on April 19, 2008, when Singh wrote an opinion piece in the Guardian containing these sentences:
The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.
The BCA sued for libel, and won an initial victory in May of 2009, when Sir David Eady, the presiding judge in the English High Court, decided that Singh's piece involved assertions of fact rather than opinion, and that the word bogus in effect meant "fraudulent" and not just "ineffective". This decision meant that in order to defend himself successfully, Singh would have to prove that the BCA was deliberately and knowingly dishonest in promoting treatments that it knew did not work.
Although the Guardian withdrew the article, Singh chose to appeal Eady's judgment, and attracted considerable support for his goal of keeping libel laws out of scientific debate.
The Court of Appeals had this to say about the question of fact vs. opinion:
One error which in Ms Page's submission affects Eady J's decision on meaning is that in §14, quoted above, he treats "verifiable fact" as antithetical to comment, so that any assertion which ranks as the former cannot qualify as the latter. This, it is submitted, is a false dichotomy. It led the judge to postulate the resultant issue as "whether those responsible for the claims put out by the BCA were well aware at the time that there was simply no evidence to support them". This, he held, was "a matter of verifiable fact".
It seems to us that there is force in Ms Page's critique – not necessarily because fact and comment are not readily divisible (that is a philosophical question which we do not have to decide), but because the subject-matter of Dr Singh's article was an area of epidemiology in which the relationship of primary fact to secondary fact, and of both to permissible inference, is heavily and legitimately contested. The issue posed by the judge is in reality two distinct issues: first, was there any evidence to support the material claims? and secondly, if there was not, did the BCA's personnel know this? If, as Dr Singh has contended throughout, the first issue is one of opinion and not of fact, the second issue ceases to matter.
In our judgment Eady J, notwithstanding his very great experience, has erred both in conflating these two elements of the claim and, more particularly, in treating the first of them as an issue of verifiable fact.
With respect to the question of deliberate dishonesty vs. careless disregard for evidentiary status, the court wrote:
Once the allegation that there is "not a jot of evidence" to support the claims is properly characterised as a value judgment, the word "happily", even if synonymous with "knowingly", loses its sting. But we respectfully doubt whether the judge was justified in any event in attributing to the word any significance beyond, say, "blithely". The natural meaning of the passage, in other words, was not that the BCA was promoting what it knew to be bogus treatments but that it was promoting what Dr Singh contended were bogus treatments without regard to the want of reliable evidence of their efficacy – a meaning which takes one back to the assertion that there was not a jot of evidence for the BCA's claims.
Milton is quoted, and not in a good way for the BCA:
… the material words, however one represents or paraphrases their meaning, are in our judgment expressions of opinion. The opinion may be mistaken, but to allow the party which has been denounced on the basis of it to compel its author to prove in court what he has asserted by way of argument is to invite the court to become an Orwellian ministry of truth. Milton, recalling in the Areopagitica his visit to Italy in 1638-9, wrote:
"I have sat among their learned men, for that honour I had, and been counted happy to be born in such a place of philosophic freedom, as they supposed England was, while themselves did nothing but bemoan the servile condition into which learning among them was brought; …. that nothing had been there written now these many years but flattery and fustian. There it was that I found and visited the famous Galileo, grown old a prisoner of the Inquisition, for thinking in astronomy otherwise than the Franciscan and Dominican licensers thought."
That is a pass to which we ought not to come again.
The court's conclusions could not, as far as I can understand them, be more favorable to Singh. And the opinion further suggests that he may be succeeding in his quest to reform English libel law more broadly:
It may be said that the agreed pair of questions which the judge was asked to answer … was based on a premise, inherent in our libel law, that a comment is as capable as an assertion of fact of being defamatory, and that what differ are the available defences; so that the first question has to be whether the words are defamatory even if they amount to no more than comment. This case suggests that this may not always be the best approach, because the answer to the first question may stifle the answer to the second.
Towards the end of the judgment, the court cites "[r]ecent legislation in a number of common law jurisdictions - New Zealand, Australia, and the Republic of Ireland", and quotes from the opinion of an American judge:
We would respectfully adopt what Judge Easterbrook, now Chief Judge of the US Seventh Circuit Court of Appeals, said in a libel action over a scientific controversy, Underwager v Salter 22 Fed. 3d 730 (1994):
"[Plaintiffs] cannot, by simply filing suit and crying 'character assassination!', silence those who hold divergent views, no matter how adverse those views may be to plaintiffs' interests. Scientific controversies must be settled by the methods of science rather than by the methods of litigation. … More papers, more discussion, better data, and more satisfactory models – not larger awards of damages – mark the path towards superior understanding of the world around us."
I suspect that this sort of attention to legislation and legal opinion in other countries is not a normal part of English appeals-court judgments, and represents an implicit (and well-deserved) rebuke to the current state of the law of defamation in England and Wales.
A response from the BCA is here.
[Hat tip to Ian Preston.]